Page 191 of [2004] 1 All SA 181 (SCA)
Mrs Cywes had a canna in her garden in Constantia, Cape Town, for many years before the application date.
She gave rhizomes to one Henrico and Henrico sold their offspring to the defendant. These formed part of the
infringing batch. Desai J nevertheless concluded that there was no proof that her plant was identical to
Phasion. And one of the reasons why Rogers was rejected was because, Desai J found, he was strongly
opposed to plant breeders' rights because they are a moneymaking scheme. But this misstates Rogers's
evidence. He stated clearly that he was opposed to people obtaining plant breeders' rights for plants that are
not new, a feeling shared by Parliament (when it made novelty a requirement for a valid right) and by others.
There is no reason to doubt Rogers' evidence that he had bought an identical plant at Magaliesburg and that
he had used it for landscaping in the Cape during the late 1980's. In the absence of cogent evidence to the
contrary, this evidence was sufficient to establish that the plant had "otherwise come to the knowledge of the
public"12 and that the plant was not distinctive. All there is was Kirsten's evidence that he had not
encountered the plant before he had seen it in Kruger's garden during 1991, and Joubert's statement that his
office had not found the plant in a nursery during the registration process. This may be true but regard must
be had to the fact that cannas were not in demand at the time and it was to be expected that they would not
have been exhibited at nurseries among the more fashionable plants. In any event, the evidence did not
refute that of the defendant.
Conclusion
[23] Although this judgment deals with issues that are somewhat more wideranging than the pleadings, the
additional matters are matters of law based upon commoncause facts. Irrespective of these issues, the
plaintiff's claim should have been dismissed by the court below. The plaintiff was not the holder of a valid
plant breeder's right for the reasons
View Parallel Citation
given. The plaintiff has to suffer the consequence of its misrepresentations because the responsibility for the
accuracy of an application for plant breeders' rights rest "fairly and squarely upon the applicant".13 Unlawful
administrative action cannot give rise to substantive rights.
[24] Concerning the counterclaim14 in which the defendant claimed the termination of the plaintiff's rights in
respect of Phasion, the rather strange provisions of section 33(2) of the Act, as they now stand, must be
considered:
"The registrar may terminate a plant breeder's right prior to the expiry of the plant breeder's right if
(a)
any information submitted to him or her in the application for such a right or in connection with such an
application, was incorrect and if such a right would not have been granted if he or she had known that the
information was incorrect;
Page 192 of [2004] 1 All SA 181 (SCA)
(b)
information has come to light which, if discovered earlier, would have resulted in the plant breeder's right
being refused;
(c)(g) . . .
(h)
the plant breeder's right has been granted to a person who is not entitled thereto, unless it is transferred to
the person who is entitled thereto; or
(i)
the holder of the plant breeder's right is ordered to terminate the plant breeder's right by an order of court."
[25] What this literally means is that if a court finds that a holder's grant is void it must order the holder "to
terminate" the right in which event the Registrar must then exercise a discretion which, in turn, may give rise
to an administrative appeal (section 42). I do not accept that the section can have such a perverse meaning.
It cannot mean that the Registrar would be entitled to ignore a court judgment in the exercise of an
administrative discretion. In any event, on the facts of this case there is no possibility that the Registrar can
exercise a discretion in favour of the plaintiff under either paragraph (a) or (b) and, as I have said earlier,
there is no evidence that anyone could legally benefit from a transfer under (h).
[26] Section 38 of the Act cannot assist the plaintiff. It provides:
"A defect in the form of any document which is in terms of any law required to be executed in a specific manner,
or in a notice issued in terms of this Act, shall not render unlawful an administrative action executed in respect of
the matter to which such document or notice relates, and shall not be a ground for exception to any legal
procedure which may be taken in respect of such matter, if the requirements and meaning thereof are
substantially and intelligibly set forth."
The defects herein found were not defects in "form" but in substance and the statutory requirements were
not "substantially . set forth".
[27] Reliance on section 36(1) also provides but cold comfort. It reads:
"The registrar may authorise
(a)
the correction of any clerical error or error in translation appearing